Judge: Nathan Vu, Case: 2021-01216223, Date: 2022-11-28 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Order to Show Cause re: Dismissal and Case Management Conference

These matters will be addressed after the hearing on the demurrer and motion to strike.

Plaintiffs Stewart Fisher, Lori Smelts, and Ava Fisher shall be prepared to explain why they have not filed a proof of service for Defendant Eddie Garcia or dismissed Defendant Eddie Garcia.

Plaintiffs Stewart Fisher, Lori Smelts, and Ava Fisher also shall be prepared to explain why they have not taken the default of Defendant Marriott International, Inc., and Defendant Marriott’s Newport Coast Villas, or dismissed these two defendants.

Demurrer

Defendant Marriott Resorts Hospitality Corporation’s demurrer is SUSTAINED as to the first, third, fourth, fifth, sixth, and seventh causes of action, with 21 days leave to amend.

Defendant Marriott Resorts Hospitality Corporation (Defendant Marriott Resorts) demurs to the first, third, fourth, fifth, sixth, and seventh causes of action of the Complaint filed by Plaintiffs Stewart Fisher, Lori Smelts, and Ava Fisher.

Standard for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

1st Cause of Action (Battery)

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890, citation omitted.)

The element of intent requires that the defendant intended to commit a battery or was substantially certain that battery would result from the defendant’s conduct. (See Ashcraft v. King (1991) 228 Cal.App.3d 604, 613 [where medical consent conditioned on using family-donated blood, battery claim stated where other blood used in surgery, intent adequately alleged by claimed willful disregard of condition regarding blood source].)

“As a general rule, California law recognizes that ‘. . . every person is presumed to intend the natural and probable consequences of his acts. Thus, a person who acts willfully may be said to intend ‘those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).” (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 746, citations omitted, quoting Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318.) Accordingly, “[i]n an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff's rights” (Ashcraft v. King, supra, 228 Cal.App.3d at p. 613.)

Defendant Marriott Resorts argues that Plaintiffs have not sufficiently alleged the intent to harm Plaintiffs. In fact, Defendant Marriott Resorts points out that Defendants had no reason to intentionally subject their patrons to bedbug bites.

Plaintiffs’ only allegations relating to intent are the following:

During Plaintiffs’ stay, Defendants and DOES 1 through 20, intentionally and recklessly did acts that were unconsented to by Plaintiffs and therefore resulted in offensive contact with their person, including but not limited to: (1) Defendants’, and DOES 1 through 20, deliberate choice not to eradicate a Cimex lectularius infestation in the hotel; (2) Defendants’, and DOES 1 through 20, deliberate choice not to inspect or ensure that Plaintiffs’ room, [sic] was free of Cimex lectularius immediately before Plaintiffs’ stay at the hotel; (3) Defendants’, and DOES 1 through 20, deliberate and reckless choice not to inspect the bed skirts in Plaintiffs’ room to protect against and prevent a Cimex lectularius infestation; (4) Defendants’, and DOES 1 through 20, willful disregard of a Cimex lectularius infestation that was either known or should have been known from prior infestations in Plaintiffs’ room; (5) Defendants’ deliberate and reckless choice not to notify Plaintiffs of the presence of Cimex lectularius in the hotel and, specifically, Plaintiffs’ room.

(Compl., ¶ 37). Defendant argues that these are mere contentions, deductions, and conclusions without any factual basis.

In opposition, Plaintiffs contends that awareness of a condition that is known to cause harm and the absence of effort to stop such contact from occurring constitutes a battery. In support, they rely on Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003) 347 F.3d 672, in which the Seventh Circuit stated that the defendant’s “failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well.” (Id. at p. 675.)

That reliance is misplaced. Although Mathias v. Accor Economy Lodging, Inc. was a bed bug case, it was a negligence action – a cause of action to which Defendant Marriott Resorts does not demur. In addition, the opinion addressed only the issue of the appropriateness of a punitive damages award. It does not go to the issue of the “intentional” element of battery. In fact, neither fraud nor battery causes of action were litigated in that case. Thus, the portion of the opinion on which Plaintiffs rely is dicta.

Furthermore, Mathias v. Accor Economy Lodging, Inc. is distinguishable from our case. The evidence in Mathias showed that the defendant was aware of a bed bug infestation for years, reaching “farcical proportions” where it continued to rent rooms it knew had bed bugs, including the one rented to the plaintiffs. (Mathias v. Accor Economy Lodging, Inc., supra, 347 F.3d at p. 675.) The Complaint in this case contains no such allegations.

Plaintiffs also rely on a passage in Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099-1100, in which the court stated that a real property owner “owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give recreational users warning of hazards on the property, unless: (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity; (2) permission to enter for a recreational purpose is granted for a consideration; or (3) the landowner expressly invites rather than merely permits the user to come upon the premises.”

Plaintiffs’ reliance on Ornelas v. Randolph is also misplaced. That case, like Mathias v. Accor Economy Lodging, Inc., was a negligence action. In addition, the decision in Ornelas v. Randolph focused on a summary judgment ruling. The Supreme Court considered the applicability of Civil Code section 846, which provides limited liability for private landowners for injuries sustained by another from recreational use of the land.

The allegations of the Complaint are insufficient to establish the intent element of a cause of action for battery. Specifically, the Complaint contains only conclusory allegations that Defendants had knowledge of a bedbug infestation, that Defendants intentionally disregarded these conditions, and that Defendants intentionally rented the room to Plaintiffs knowing that it was substantially certain that Plaintiffs would get bitten by bedbugs. Plaintiffs fail to assert any specific facts that would support these allegations.

3rd Cause of Action (Intentional Infliction of Emotional Distress)

The elements of a cause of action for Intentional Infliction of Emotional Distress (IIED) are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007, citation omitted.)

“A defendant's conduct is considered to be outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid., citations omitted.)

An IIED cause of action based on reckless disregard of the probability of causing emotional distress requires an intent to injure the plaintiff. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903-906.) Absent such intent, inaction by a defendant does not constitute extreme and outrageous conduct. (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 210 [trial court properly sustained demurrer to IIED cause of action where plaintiff alleged that police officers failed to intervene when, during surveillance of public laundromat, officers observed suspect enter and stab plaintiff].)

Defendant argues that this cause of action fails because Plaintiffs’ allegations of “reckless disregard” and intention are based on contentions, deductions, and conclusions, and Plaintiffs failed to allege the nature, extent, and duration of the alleged emotional distress.

Plaintiffs argue that they alleged that Defendant’s actions were outrageous by directing employees not to clean or inspect for bedbugs, which heightened Plaintiffs’ anxiety and concern.

Here, Plaintiffs’ allegations in support of their IIED claims are similar to their allegations of battery. Plaintiffs have failed to sufficiently alleged conduct that would be considered so extreme as to exceed all bounds of that usually tolerated in a civilized community or even a reckless disregard of the probability of causing emotional distress. Plaintiffs’ allegations in this regard amount to conclusions unsupported by specific facts.

Further, there are insufficient allegations regarding the exact nature, duration, and extent of each Plaintiffs’ alleged severe emotional distress. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 [“Only emotional distress of ‘such substantial quantity or enduring quality’ that an individual in civilized society should not be expected to endure it constitutes severe emotional distress” and IIED claim failed where plaintiff “pleaded no facts demonstrating the nature, extent or duration of her alleged emotional distress.”], citation omitted.)

4th Cause of Action (Fraudulent Concealment)

The elements of an action for fraud and deceit based on a concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.)

“Concealment is a species of fraud, and ‘[f]raud must be pleaded with specificity.’” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.) General and conclusory allegations will not suffice. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645). The particularity requirement “necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Ibid.) “A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’” (Ibid., quoting Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Defendant Marriott Resorts argues that Plaintiffs acknowledge that Defendants’ employees inspected the room and were unable to find bedbugs during that inspection. (Compl., ¶ 17.) As such, Defendant reasons that Plaintiffs cannot allege that Defendant had actual knowledge of the infestation. Defendant also argues that Plaintiffs’ allegations are not pled with the requisite specificity.

Plaintiffs argue that the fraudulent concealment cause of action is sufficient because it is not necessary for a defendant concealing to have a particular person in mind and it is sufficient that the concealment was intended to be repeated and withheld from a particular class of persons. Plaintiffs argue that they sufficiently alleged that Defendants had intentionally concealed a bedbug infestation prior to Plaintiffs’ stay, but rented the room anyway.

Plaintiffs’ allegations on this cause of action are similar to their allegations as to the first and third causes of action. Thus, Plaintiffs have failed to allege this cause of action with sufficient specificity — for example, the Complaint does not provide the factual basis for Plaintiffs’ allegations that Defendants had prior knowledge of a bedbug infestation.

5th Cause of Action (Private Nuisance) and 6th Cause of Action (Public Nuisance)

A nuisance is statutorily defined as “[a]nything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. . . .” (Civil Code, § 3479.) “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civil Code, § 3480.) “Every nuisance not included in the definition of the [Section 3480] is private.” (Civil Code § 3481.)

The elements of an action for private nuisance are: (1) plaintiff must prove an interference with his use and enjoyment of his property; (2) invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, that is, that it causes plaintiff to suffer substantial actual damage; (3) interference with the protected interest must not only be substantial, but it must also be unreasonable, that is, it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.)

“Although ‘any interest sufficient to be dignified as a property right’ will support an action based on a private nuisance, and this includes within its purview a tenancy for a term, such right does not inure in favor of a licensee, lodger or employee.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125.)

To plead a cause of action for public nuisance, a plaintiff must allege the following: (1) that the defendant, by acting or failing to act, created a condition or permitted a condition to exist that was, among other things, either harmful to health; or was indecent or offensive to the senses; or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) that the condition affected a substantial number of people at the same time; (3) that an ordinary person would be reasonably annoyed or disturbed by the condition; (4) that the seriousness of the harm outweighs the social utility of the defendant’s conduct; (5) that the plaintiff did not consent to the defendant’s conduct; (6) that plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.)

“As the California Supreme Court has explained, ‘public nuisances are offenses against, or interferences with, the exercise of rights common to the public.’ The interference must be both substantial and unreasonable.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542, quoting People ex rel. Gallo v. Acuna (1997) 15 Cal.4th 1090, 1103.)

Defendant Marriott Resorts argues that Plaintiffs’ nuisance claims are subsumed by their negligence claims and as such Plaintiff may not allege nuisance. Plaintiffs cite to the Second Restatement of Torts for the proposition that the threat of smallpox communication to a single person may be enough to constitute a public nuisance because of the possibility of an epidemic. Plaintiffs likens the spread of smallpox to Plaintiffs’ exposure to a bed bug infestation, which poses a threat to the public.

While Plaintiffs may allege alternative theories of liability for negligence and nuisance at the pleading stage, Plaintiffs’ allegations are insufficient to constitute either a private or public nuisance.

The Complaint pleads that Plaintiffs rented a hotel room from Defendants. Plaintiffs thus did not have a property right sufficient to support a private nuisance claim. (See Venuto v. Owens-Corning Fiberglas Corp., supra, 22 Cal. App. 3d at p. 125.

In addition, Plaintiffs’ allegations are insufficient to establish that any alleged nuisance affects, at the same time, an entire community, neighborhood, or a considerable number of persons. Here, Plaintiffs merely make the allegation that a bed bug infestation “affects the community at large.” (Compl., ¶ 88.) This allegation is conclusory and devoid of facts. For example, Plaintiffs do not assert any factual basis to support the extent of the alleged bed bug infestation or its effects on the community.

7th Cause of Action (Breach of Contract)

“To state a cause of action for breach of contract, it is required that there be a pleading of the contract, plaintiffs’ performance (or excuse for nonperformance), defendant's breach, and damage to plaintiff therefrom.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.) Furthermore, in an action founded upon a contract, a party must be able to ascertain from the pleading whether the contract was written, oral, or implied by conduct. (Code Civ. Proc., § 430.10, subd. (g).)

Defendant Marriott Resorts argues that while Plaintiffs have alleged they entered into a written contract with Defendants, they fail to allege the contract by its terms, set out the terms verbatim, or attach a copy of the written contract.

Plaintiffs argue that the “nature of booking a motel room in this modern age is not so clear-cut. A hotel may originally begin by being booked online, which would feasibly be a written contract, or booked by telephone or in person, which would be an oral transaction.” They argue that further discovery would be needed to exactly classify the contract of the room, but the key element is that Plaintiffs paid for the hotel room.

As even Plaintiffs concede, it is unclear whether or not Plaintiffs’ contract cause of action is based on a contract implied by conduct, an oral contract, or a written contract. Further, while Plaintiffs allege that they paid (i.e., their alleged performance), Plaintiffs fail to allege Defendants’ obligations under the alleged agreement and Defendants breach of said agreement.

Motion to Strike

Defendant Marriott Resorts Hospitality Corporation’s motion to strike is GRANTED, with 21 days leave to amend.

Defendant Marriott Resorts Hospitality Corporation (Defendant Marriott Resorts) moves to strike the punitive damages allegations of the Complaint filed by Plaintiffs Stewart Fisher, Lori Smelts, and Ava Fisher.

Standard for Motion to Strike

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.)

“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

Striking Punitive Damages Allegations

The court sustained the Defendant Marriott Resort’s demurrer as to every cause of action except the second cause of action for negligence. A negligence claim does not support an award of punitive damages. (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 10 [“Conduct which may be characterized as unreasonable, negligent, grossly negligent, or reckless does not satisfy the highly culpable state of mind warranting punitive damages.”].) Therefore, the motion to strike should be granted, with leave to amend.

From the court’s ruling on the demurrer and motion strike, it appears that many of Plaintiffs’ claims and their request for punitive damages require factual support that Plaintiffs do not have at this time and cannot obtain without discovery. Rather than expending unnecessary time and expense on further rounds of amended complaints, demurrers, and motions to strike, the court encourages the parties to stipulate to conduct appropriate discovery first and to allow Plaintiffs an opportunity to amend their complaint after the parties have had the opportunity to engage in discovery.

Defendant Marriott Resorts Hospitality Corporation shall give notice of this ruling.